Van Epps v. Clapp

1 Wend. 78

Opinion

An appearance ™ri t,r ^6with out the a plaintiff will not warrant the defendant to proceed to judgment of non pros.

In this case, the capias contained an ac-eliam clause. The sheriff, without instructions or direction, permitted the dei’en^ant to indorse his appearance. The defendant ruled the plaintiff to declare, without having filed special bail, and not receiving a declaration, entered his default and signed judgment of nonpros. The judgment was set aside as irregular, with cosls.